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Anthropology and Islamic Law
Oxford Handbooks Online
Anthropology and Islamic Law
John R. Bowen
The Oxford Handbook of Islamic Law
Edited by Anver M. Emon and Rumee Ahmed
Subject: Law, History of Law, Law and Society, Family Law
Online Publication Date: Oct
2015
DOI: 10.1093/oxfordhb/9780199679010.013.54
Abstract and Keywords
The anthropology of Islamic law is concerned centrally with observing and analyzing
practices governed by explicit norms that are given Islamic justification, from commercial
transactions to marriage and divorce to rituals of worship. This article traces the work of
anthropologists in courtrooms and in informal social settings, and the process of
developing collaborative relationships with text-based scholars. It highlights two
recurrent tensions: one between “law” and the Islamic categories of shari’a/fiqh/hukm,
the other between emphasizing cultural distinctiveness and emphasizing cross-societal
processes of interpreting and applying Islamic texts and tradition. Included in the
treatment are shari’a councils, fatwa bodies, mahr and marriage contracts, medical
ethics, and realms of ʽibadat.
Keywords: anthropology, Islamic law, shari’a, Islam, culture, marriage contracts, Islamic councils, ethics, salat,
ʽibadat
The anthropology of Islamic law is concerned centrally with observing and analyzing
practices governed by explicit norms that are given Islamic justification, from commercial
transactions to marriage and divorce to rituals of worship. Such governance may or may
not involve state-empowered courts or judges. Two key questions underlie much of the
divergence and debate in this field: one about “Islamic law,” the other about
anthropology.
The English word “law,” even in its extended anthropological usages, is used to denote a
narrow range of phenomena, whereas the relevant Islamic terms—shari’a, fiqh, hukm—
refer both to the widest sphere of normativity—all that God commands—and to specific
practices. If fiqh is close to the Anglo-American sense of case-law or jurisprudence, it
depends on the ultimately unknowable pathway for humans in all their affairs, or shari’a.
Consequently, a much wider range of activities than are normally denoted by “law” (or
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Anthropology and Islamic Law
other European cognates) are subject to vigorous debates in Islamic contexts about their
conformity to shari’a, as humans can discern it through fiqh. Rituals of worship, sacrifice,
and pilgrimage are most clearly subject to this “legal” scrutiny, but so are everyday acts
of greeting or dressing. Rarely, however, are these matters the subject of state-law
proceedings; they are, however, central to anthropology.
The conceptual gap between “law,” on the one hand, and shari’a/fiqh/hukm on the other,
means that different topics fit more or less comfortably into Islamic studies or into legal
studies. As we move from formal proceedings in courts or councils toward normative but
extra-institutional reflections and debates about everyday activities, we move further
from the usual sense of “law.” Less evidently, but quite importantly, is the effect of state
codification on Islamic discussions: as we move from ritual, ethics, and religious topics
and toward the practices more frequently regulated by courts, such as marriage and
divorce or property transactions, we often (depending on the legal regime) move away
from a domain of debate governed by the texts and traditions of Islam, and toward the
application of positive law, meaning state statutes and jurisprudence. In one sense, then,
“law” and “Islamic” are at opposite ends of a chiastic structure: the more state law, the
less Islam.1
How then do anthropologists frame and analyze processes such as those listed above?
Has the anthropological effort to extend the reach of “law” to include non-state processes
and institutions resolved the issue? The second question concerns precisely the problems
of such an extension within anthropology. The discipline of social or cultural
anthropology focuses on dimensions of society and culture, conceived of as structures,
networks, or conceptual worlds that link across domains, cohere internally, and differ
from other societies or cultures. It has highlighted distinctions across spatial units, rather
than continuities of supra-local traditions. How, then, does anthropology approach a field
of specialized, text-based knowledge such as Islamic law, where the normative ground is
based on claims of continuity and universality?
I. Historiography
The most influential early analyses of Islamic law that resembled anthropological studies
were undertaken under colonial regimes as part of efforts to dominate Muslim societies.
When tasked to advise the Dutch government on its efforts to suppress resistance in
Aceh, the Islamicist Christiaan Snouck Hurgronje (1857–1936) recommended that Islam’s
legal and political dimensions be suppressed but that its spiritual dimensions be allowed.
In any case, he argued, the fixed rules of classical Islamic jurisprudence had little to do
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Anthropology and Islamic Law
with shaping how Muslims actually practice their religion. Rather, local scholars
accommodated local usages and ideas by baptizing them as “Islamic,” as when local ideas
about spirits, jinn, and aulia, were drawn on to allow people to make extensive petitionary
prayers to saints. For Snouck, doctrine was irrelevant to everyday life, but the practical
judgments of scholars (“ulama”) did conform to “human needs.”2
A similar distinction between enunciated norms and practical resolutions of conflicts
underlies the modern anthropology of law, which was inspired by the fieldwork carried
out by Bronislaw Malinowski (1884–1942) in the Trobriand Islands. Malinowski used field
observations to castigate Europeans for their generalizations about “primitives,”
including those made about “primitive law.” His argument, here as on other topics, was
that humans work out their lives in strikingly similar ways, starting from different funds
of knowledge. They resolve disputes in ways that everyone can recognize as law-like.
Malinowski’s attention to social process and social structure, as well as to psychology and
to ways of speaking, left a strong influence on what was to develop in the anthropology of
law, through such key figures as Max Gluckman and Sally Falk Moore, to most of today’s
practitioners of that field.3
Early social anthropology focused on politics and social structure lying outside the state,
initially as part of the colonizing mission and later in recognition of all that was left
unstudied by jurists and political scientists. Insofar as they concerned Muslim peoples,
anthropologists were rarely concerned with issues of fiqh or shari’a but focused on local
mechanisms of dispute settlement, such as in E. E. Evans-Pritchard’s studies in
Cyrenaica.4 This concern with finding local sources of authority led British social
anthropology toward an interest in the interrelationships among tribal structures, men of
learning (ulama), and Sufi lodges in North Africa. Insofar as ulama pronounced on legal
matters, this concern with political authority created the potential for explorations in
Islamic law, but did not lead to direct engagement with the Islamic legal tradition.5
Nor did the Boasian lineage of American cultural anthropology exhibit much interest in
the matter, in part because American anthropologists prior to the Second World War
rarely worked in Muslim societies. Things changed somewhat with the postwar turn to
studies of large-scale religious traditions in “new nations,” starting with South Asia, and,
by the 1960s, to symbols and interpretations, now in an awkward Parsonian dance with
the norms and structures that remained the province of sociologists. Nevertheless, the
discipline remained perhaps overly respectful of a division of labor between the
Islamicists’ study of the “Great Tradition” of urban, literate religious scholars and
anthropologists’ focus on smaller-scale societies or nicely-bounded Sufi cults, with little
attention to ways in which adepts of those “Little Traditions” tied their practices back to
scripture, legal schools, and literary works.6
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Anthropology and Islamic Law
Things changed on the American side when Clifford Geertz and his students ventured
into the territory of Islamic law in Morocco, with studies of courts and judges.7 Dale
Eickelman (a student of W. Cantwell Smith as well as of Geertz) traced changes in Islamic
traditions of law and learning by working with an Islamic judge, while Clifford Geertz
contrasted the Islamic idiom of haqq (“right, just”) with its Indic and Indonesian
counterparts to describe a Muslim culture of law and justice. Islamic law remained,
however, peripheral to their projects. Lawrence Rosen, by contrast, endeavored to trace
the articulation of Moroccan culture, Islamic legal practices, and law as a comparative
domain, and was in this respect the first to construct a cultural anthropology of Islamic
law.
Rosen (and Geertz) asked to what extent is what we see in Islamic legal settings the
rendering of key cultural idioms in Islamic terms. This question—more explicitly posed by
Rosen, less so by Geertz (for whom haqq somewhat confusingly stood for both Islamic and
Arabic ways of seeing the world)—opened up Islamic law to anthropology.
This move, however, also created a tension between two potential starting points for an
eventual anthropology of Islamic law. One such point was the Islamic tradition, which
local actors understand and appropriate in locally specific ways. Across Muslim societies,
people marry, divorce, pray, and so on, and some of them, ulama or not, specify the
textual referents for these practices: how do they do these things and justify them in this
place? This direction of anthropological inquiry facilitated exchanges with textual
scholars trained in the older philological approach to the tradition, even though, by
privileging the local, it was for a while seen by some of philologically-oriented scholars as
a kind of shari’atic slumming. Today it makes possible close collaboration between
anthropologists, historians, and legal scholars.8
The other starting point was a particular cultural order, which shapes local practices. In
this society, people see the world in a certain way, and this shapes how they navigate
their economic, religious, and artistic worlds; how does this worldview shape how they
discuss Islam? This direction of inquiry facilitated exchanges with anthropologists not
particularly interested in Islam, because it privileged the cultural links between law and
other domains in any particular society. For example, Rosen shows how ideas about
relationships and credibility pervade domains of Islamic law and market transactions in a
Moroccan town.9 This focus left in the background the debates among people in any one
society over textual interpretation, however, and thus was less open to comparative
treatments across societies wherein authorities referred to Islamic law. In this regard,
Geertz’s famous Morocco/Java study provided a contrast of completely different cultural
types, rather than a comparison of alternative interpretations of a shared tradition.10
Paradoxically, this latter approach, which came to be called “interpretive anthropology,”
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Anthropology and Islamic Law
turned out to be particularly ill-suited for studying interpretations in domains (such as
Islamic law) where members of the same society arrive at quite different judgments and
do so drawing on authorities from times and places distant.
One can see ensuing debates and expansions in anthropology as gradually narrowing the
gap between these two directions of inquiry. By the 1990s, a growing number of
anthropologists were framing the question in terms of how local legal actors interpret
and practice elements of the Islamic tradition in a context that included positive law,
competing understandings of fiqh, cultural ideas and social norms, and practical
assessments of competing statements. Within the anthropology of law, this way of posing
the question was banal, echoing rather classic anthropological approaches to dispute
resolution as practiced by Malinowski or Gluckman. Within the anthropology of Islam,
however, this framing meant that fieldworkers now paid attention to practices of
justification found on multiple levels: in village forums and local mosques, by judges in
courtrooms, and by muftis and scholars in national debates. Now anthropologists studied
not only how people resolved a dispute, but also how people justified what they did and
how they invoked multiple traditions, including that of classical Islamic jurisprudence.
II. Judges and Courts
Even in ethnographic studies of courts and judges, we find the division between the two
starting points, Islam or culture, operating in fractal fashion. Some anthropologists place
Islamic tradition in the foreground, while others emphasize cultural ideas and processes.
Two studies of East African courts illustrate this distinction. Susan Hirsch, working in
Muslim Kenya, highlights the gendered quality of courtroom narratives. She bases her
analysis on local (Swahili) categories to best capture the understanding that ordinary
men and women bring to the courtroom experience. She places in the background
scholarly knowledge or the sources and reasoning used by judges. By contrast, Erin
Stiles, studying in a Zanzibar divorce court, highlights how judges dispense justice,
justify their decisions, and respond to varied claims and complaints. The links between
courtroom narratives and Islamic law are placed in the foreground.11 These choices of
framing make for different sets of references: Hirsch mainly to works in law and
language; Stiles to scholars working in Islamic legal studies.
Both Hirsch and Stiles take note of the pluralistic legal context in which their judges
operate. “Legal pluralism” has become a phrase operating as a distinct frame for studies
in the anthropology of law, particularly when pursued by scholars whose initial training
was in law. This approach is exemplified by the work of Franz and Keebet von Benda-
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Anthropology and Islamic Law
Beckmann.12 Pioneers in empirical analyses of pluralistic legal orders, the von BendaBeckmanns highlighted the internal social logics of two or more legal orders, most
prominently in West Sumatran inheritance cases, where customary adat law and Islamic
law had provided competing normative grounds for law and social life since the early
nineteenth century. By starting from these legal orders, they pay particular attention to
links between social institutions and normative orders—links also pursued by other
students of Sumatran history and religion. In this Weberian type of analysis, scholars
show how traders supported reformist Islamic ideas and opposed adat law in favor of
Islamic law. By the same token, these authors background the ways that judges make
references to multiple types of normative or legal sources in the same courtroom. By
contrast, my own work in Sumatra on similar issues examines ways that Islamic court
judges have changed their tendencies to follow Islamic or adat law judgments over time,
not because of changes in available legal repertoires but because of shifts in local power
and resources. The unit of analysis thereby becomes the judge and his or her multiple
sets of references and justifications, not one or more distinct legal orders.13
One finds similarly diverse analytical frames in studies of courtrooms elsewhere. Working
in Iran and Morocco, Ziba Mir-Hosseini emphasizes the ways litigants strategically
represent their divorce demands and the ways judges seek to bring about the outcomes
they personally prefer. She shows all actors working strategically within the constraints
of statutes and of the authoritative opinions (fatwas) of scholars. The result of her
framing is that these actors appear very much like their strategizing counterparts in nonIslamic environments. Mir-Hosseini’s work indeed strikes a balance in framing,
showcasing a working judicial system in a classical social anthropological way, as a set of
mechanisms within which people work to achieve ends, but also emphasizing the Islamic
repertoire as interpreted by judges, muftis, and litigants. Arzoo Osanloo (trained as a
jurist) visits similar courtrooms but as part of a study of rights discourses. She shows how
women’s claims to be rights-bearers are nourished in Qur’anic study groups but also by
the codification of Iranian civil law that makes explicit individual rights; the framing is
thus in terms of multiple pathways to asserting rights, rather than the strategic
manipulation of references in the courtrooms.14
At the same time that we observe different framing effects in works by different
anthropologists, we can also draw on these works to construct a comparative matrix of
Islamic courts, with particular attention to the very different structures within which they
function. The “Kadhi courts” of Kenya studied by Hirsch are used by an ethno-religious
minority outside the state civil law system, whereas the Iranian courts studied by MirHosseini and Osanloo are regulated by precisely such a state system, a difference that
opens up a wider and more consequential domain-specific but yet public sphere for
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Anthropology and Islamic Law
Iranian women seeking to demand rights. In such contexts, statutes may have a liberating
judicial effect vis-à-vis a conservative religious establishment.
If the above studies start from the courtroom setting and then ask how judges and
litigants act in that setting, another set of studies focuses on categories of Islamic law
and how they are applied in those settings. Rosen and Brinkley Messick both examined
the importance of “intention” (niyya) in courts, and the differences in their approaches
returns us to the distinct starting points described earlier.15 For Rosen, Moroccan (and
more broadly Arabic) ideas of the person do not consider intentions to be unreadable
because private, but readable because tightly tied to their actions and their social
relationships. This idea does not derive from Islamic jurisprudence but from Arabic
culture, as it underlies actions in other areas of life as well. For Messick, Islamic writings
stress the difficulties of knowing intention but also the crucial role of assessing intention
for judging the effects of an act, including a speech act; beyond that, scholars have
developed diverging and contrasting opinions, in some cases influenced by the desire to
model Islamic law on European commercial law, where intention can be sufficient to
enforce a contract. Although Messick limits his textual exploration to the Zaydî legal
school, issues raised therein surface across the Muslim world, for example, concerning
whether the correct expression of a husband’s divorce pronouncement (for example, anti
taliq, “you are divorced”), or the correct intention (as opposed to speaking in jest), or
both, are required for the pronouncement to take effect. This area of the felicity
conditions for an Islamic speech is understudied but central to the anthropology of
Islamic law. As we shall see below, niyya is a central concept in judging the successful
performance of a ritual obligation as well.
As we have assembled a greater number of ethnographies of courtrooms we have become
better able to show the variation across traditions and sometimes among judges on these
issues. For example, Clarke shows that Lebanese Sunni judges hold that they cannot
know a person’s intentions, and therefore on the matter of a divorce pronouncement
cannot invalidate it on grounds of incorrect intention. And yet sometimes a judge will
sense that the general good is best served by finding another way, which some of them do
by urging the couple to halt the legal proceeding (where the outcome is certain) and seek
a more accommodating fatwa from a jurisconsult (mufti).16
Because “family law” is the legal domain most likely to be labeled as “Islamic” in Muslim
societies today, marriage contracts deserve particular attention—and because they are
sometimes cited as the solution to unequal treatment of women under Islamic family law.
The Saudi case is particularly illuminating because of the importance of religious jurists’
interpretations for legal practices. Lisa Wynn shows how Saudi brides’ mothers insist on
including conditional clauses (shurut) in the marriage contracts, mainly to ensure the
right to complete higher education or to work outside the home (the proceeds of which
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Anthropology and Islamic Law
would remain their own assets). They could, but rarely do, add a clause to guarantee the
right to a divorce in case the husband took a second wife. Wynn also shows how the large
investment by the husband in the marriage provides a disincentive to pronounce a talaq.
Ever since the pioneering studies by Annelies Moors and Mir-Hosseini, the ways in which
mahr, either paid or promised, strengthens women’s bargaining power has become an
important empirical contribution.17
III. Normativity and Property
Islamic law (at least as studied in anthropology) is not limited to the settings of state
courtrooms, but includes other settings where actors refer to Islamic normative writings
(scriptures, texts of fiqh or fatwas) to justify actions.
The next most “state-like” settings are Islamic councils and fatwa bodies. The former
developed in the British Indies in parallel to unsuccessful efforts to create Islamic courts,
beginning in Bihar in 1921 with the creation of the Imarat-i Shari’ah, sponsored by the
Jamiatul Ulema-e Hind. Today these dar ul qazi bring together moral and shari` concerns
to hear cases of family conflicts and sometimes award a judicial divorce. They have no
enforcement powers, and base judgments on their readings of fiqh rather than on the
state personal law applied in the courts. The relationship between the shari’a councils
(relying on fiqh) and the state courts (relying on law codes) illustrates the conceptual
tension between “law” and “Islam” mentioned at the beginning of this article. It also
shows the advantage for women in approaching an institution where their moral
arguments are given considerable weight.18 However, here as elsewhere, these two kinds
of institutions do not exist in different worlds: a judge might send a case to a dar ul qazi
precisely in order to move it from one framework for judgment to another, for example
away from a dispute with criminal implications toward an effort to restore harmony (even
if by divorcing the couple).
British shari’a councils are transplanted, and somewhat transformed, versions of the
Indian institutions, with altered terms of trade with courts and a more international set of
scholars and clients, as are their North American counterparts. In those courts the law/
Islam tension becomes not a de facto division of labor between institutions, as in India,
but a division internal to the shari’a councils. If traditional fiqh allows the wife to initiate
a divorce by making an incentive payment to her husband, and limits the capacity of a
judge to dissolve the marriage without the husband’s consent, most Islamic state legal
regimes include the possibility of a judicial divorce. In Western Europe and North
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America there are no Islamic judges. A shari’a council has no enforcement power, and is
not a college of qadis. Muslim wives have nowhere else to turn to obtain a divorce,
however. Councils find themselves in an uncertain and sometimes difficult quandary,
which they attempt to overcome by inducing the husband to give a talaq, or to not object
to their action in dissolving the marriage. In much of Europe and North America, some
scholars try to avoid this quandary by encouraging pre-nuptial contracts, or by arguing
(in de facto fatwas) that civil divorce counts as Islamic.19
In nearly all anthropological studies of judges and courts, including those already
mentioned, attention is also directed to extra-judicial ways of resolving disputes and
regulating property transmission. Here careful ethnographic work has shown that a rule
or category, such as those regarding women’s rights to inheritance shares, conceals a
multi-dimensional space of power and resources. Important here was the study of
Palestinian women carried out by Annelies Moors, who showed that when a woman
inherits property this inheritance could be a mark of her social status, that she is of a
wealthy, high-status family, or it could happen because she is in a weak situation and
must try to claim property to survive—but even then is likely to find herself subsequently
deprived of the property by more powerful brothers or cousins. Moors’s study adds
ethnographic substance to Pierre Bourdieu’s well-known argument that “following rules”
explains little of the political economy of marriage or transfers of property.20
IV. Law and Ethics
In the early 2000s, anthropologists writing on Islam and Christianity began to underscore
the analytical importance of ethical practices in religious traditions. Talal Asad had
argued earlier, and in the context of a rebuttal of Clifford Geertz’s symbolic approach to
religion, that for some important religious thinkers (St. Augustine principal among them)
as for ordinary practitioners, religious practices and religious discipline are seen as
means to instill faith and character, both seen as part of a tradition. This intervention
coincided with the turn to considering Aristotelian virtue ethics and the rise of
communitarian political philosophy.21
Since that intervention, and subsequent ethnographic studies on prayer and sermons by
students of Asad,22 other studies have sought to disentangle ethical from legal
dimensions of judgments about shari’a. Hussein Ali Agrama argues that the fatwa should
be seen as a way of “caring for the self”—an ethical discourse—at least as much as a way
of judging doctrinal matters or adapting to changing contexts.23 Advice-giving (to invoke
a category perhaps broader than ifta’) surely seeks to apply a broad range of knowledge
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to a particular case. A religious leader north of Paris once described to me the way in
which he distinguished between the scholarly consensus on abortion, which he saw as a
blanket condemnation, and his response to a particular woman seeking advice, in which
he gauges her needs and capacities, and gives advice accordingly. This scholar described
the difference in terms of general principles, on the one hand, and looking to ensure the
welfare of the individual, on the other, not far from the Foucauldian “care of the self.”24
Are the activities of judges so different? As Clarke points out, some judges adopt more
than one discursive stance, changing from a non-legal to a legal modality as they move
into the courtroom setting.25 But does this mean that we need to distinguish “ethics” and
“rules” as two distinct ways judges (and other scholars) approach ordinary Muslims and
their questions? An alternative is to study the way individuals providing judgments
(muftis, judges, scholars, or imams) combine distinct types of considerations and distinct
kinds of justifications, in a single case. In studying the Islamic appellate court in Aceh,
Indonesia in 2012, I found judges deciding a talaq case discussing the moral quality of a
husband’s or wife’s behavior, the husband’s likely ability to pay, and rules in Shafiʽi fiqh,
before setting the level of payments due the wife. In their written decisions, however,
they justified their awards solely in terms of statutes and Supreme Court circulars. Only
through fieldwork could the difference be discerned between the multiple forms of moral
and legal reasoning shaping the judgment, on the one hand, and the written, and
legalistic, formal justification, on the other.
A. Medical Ethics
By the 2000s, the fast-developing field of anthropology of biotechnology had turned to the
shifting relationships between reproductive technology and Islamic jurisprudence and
ethics. Abdulaziz Sachedina provided an overall analysis of the issues for Islam, and
Marcia Inhorn and others studied ways in which these issues were debated and decided
locally.26 Inhorn worked in Egypt and Lebanon; she contrasts official Sunni and Shi’a
fatwas on the question of in vitro fertilization (IVF). The position enunciated by Egypt’s
al-Azhar and followed thereafter permits fertilization using the wife’s egg and the
husband’s sperm, because these techniques respect marriage as a contract between the
husband and wife. By the same token, use of surrogates or another man’s sperm is
disallowed. By contrast, some Shi’a scholars have permitted the use of donated eggs or
sperm, with the proviso that the child born through such technologies inherit from the
donor, as the biological parent; other scholars require that a man conduct a temporary
(mutʽa) marriage with an egg donor (the issue being whether zina occurs only with
physical intercourse) and forbid sperm donation. For some of these latter scholars,
embryo donation is allowed, as it comes from one married couple to another. Inhorn
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Anthropology and Islamic Law
finds, however, that despite the variation in scholarly views, most Shi’a and Sunni
Muslims reject the possibility of donating sperm or eggs, because it would confuse issues
of kinship and inheritance, and is a form of adultery. And yet some couples do engage in
all these practices, and find ways to register babies so as to conform to the public
rulings.27 Here we find a divergence among practices, popular opinion, and formal
religious positions.
In the most in-depth treatment of Islamic law and medical ethics and practices to date,
Sherine Hamdy explores the progression of positions and debates concerning organ
transplantation in Egypt.28 She notes that in the cross-currents of official fatwas on the
matter, one could miss the way a prominent television personality and preacher (daʽiya),
M. Shaʽrawi, framed the issue for most Egyptians through his introduction of the phrase
“our body belongs to God.” Subsequent debates on all levels can be seen as a series of
meditations on what that phrase means for the ethics of particular medical practices.
Shaʽrawi, although dismissed or reviled by many scholars, reasoned from clear principles
to an outright rejection of organ transplantation. In the debate that ensued, those in
official positions took pains to emphasize that his statement was not a fatwa, because he
did not engage in the proper legal reasoning and was not a recognized mufti. But his
followers did publish his statements as fatwas, in the broader sense of ifta’ or responses
to questions. They led the grand mufti, at the time Shaykh Tantawi, to issue a rebuttal.
He started from Shaʽrawi’s premises, but used them to prohibit only selling organs,
arguing that under conditions of necessity (darura) human need permits donating organs.
For Tantawi, as for most other scholars, the benefit (maslaha) achieved through organ
transplantation justified its use. As Hamdy points out, medical doctors were critical of
this reasoning, having as it does the potential to justify any action that benefits someone.
In the gap between Shaʽrawi and Tantawi we can see the division between traditionalist
and pragmatist forms of Islamic reasoning.
This contrast shows how, alongside official forms of ifta’ are other modes of dispensing
advice, which some may refer to as ifta’, but which follow different genre conventions.
Shaʽrawi’s particular education, medium, and ways of arguing may have placed him
outside “official ifta’” circles, but many Egyptians nonetheless followed his advice.
V. Norms of ʽIbadat
Although less often involving judges and courts, the core rituals of Islam (including
worship, pilgrimage, fasting, and sacrifice) are subject to similar processes of normative
scrutiny and judgment. Here the Islam/culture division reappears, even as
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Anthropology and Islamic Law
anthropologists are able to emphasize the creative dimensions of what seem at first blush
to be the most scripted actions: the formulaic practices of ritual prayer (salat).
Although social anthropologists might label prayer as “ritual” as distinguished from the
“legal” act of divorcing, both have tightly scripted and highly debated “felicity
conditions,” or the conditions under which an act counts as accomplishing a divorce or as
satisfying the requirements for prayer. These conditions are set out in similar fashion in
books of fiqh, and justified by pointing to hadith attributed to the Prophet. The Prophet’s
actions, including his responses to questions, provide grounds for specifying how to
divorce, worship, perform the pilgrimage, or carry out a wide range of other actions.
Divine retribution and reward follow proper or improper carrying out of these
obligations, and so from an Islamic perspective they are all governed by law, whether or
not states choose to enact statutes regarding one or another such action.
We could perhaps think (in a very non-Weberian fashion) of the opposition law/non-law as
one of analytical framework rather than one that distinguishes among types of action.
Viewing the question in this way helps to sort out differences among anthropologists
regarding ritual. For example, prayer or salat can be studied for ways in which
practitioners evaluate the correctness of performance. Unlike prototypical rituals in
anthropology, practitioners of prayer emphasize its felicity conditions. Muslims’ disputes
about salat concerned, for example, how to hold the arms in the correct fashion, or to
formulate the right intention (niyya) while in prayer. Viewed from a normative Islamic
perspective, in terms of its law-like properties, one could emphasize the criteria for
correct performance. Because the basic ritual template is fixed, attention often is focused
on minute variations in performance, allowing these variations to take on a great deal of
social significance, indexing differences in theology, idea of community, or ethnic
affiliation.29 Other anthropologists have emphasized other dimensions of the
performance; Saba Mahmood analyzes salat as performance of certain ethical
dispositions, which are developed through repeated prayer. In other words, Mahmood
investigates the interrelationship between self-discipline and ritual performance, whereas
I focused on the social–performative implications of such a tightly scripted practice. My
analysis situated salat in the domain of fiqh; Mahmood in the domain of worship (ʽibadat).
VI. Conclusions
The advances made since the 1990s concern a rapprochement between anthropology and
Islamic studies. The main elements of that change has been the willingness of Islamicists
to consider seriously the interpretations and practices of the unlettered, and the
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Anthropology and Islamic Law
corresponding willingness of anthropologists to trace derivations and adaptations of
textual elements in specific social and cultural contexts.30 Many convergences have
resulted, for example about how judges and courts work in a number of contexts. This
convergence is, of course, partial, as each discipline formats and evaluates work in
distinct ways: anthropologists still focus on social processes and cultural ideas. But the
finding that Muslims approach questions of law and religion in a wide range of ways,
some more grounded in the written tradition than others, does not threaten that tradition
but displays its versatility.
Anthropology is expanding its reach and, as it does so, it is adjusting its conceptual and
methodological toolkits. What appear at one point to be quarrels—What is a fatwa? What
is prayer?—will turn out to be different questions asked of the same, complex object.
Fine-grained analyses of practices, interactions, and emotions allow anthropologists to,
for example, appreciate the different modalities of ways a judge might speak (in and out
of the courtroom, at different moments), the changes and variations in emotional
dimensions of prayer (at different stages of personal development, in different circles),
and the multiplicity of ways that an inheritance rule is realized in social life (by social
status, wealth, and region).
This more sophisticated rendering of anthropology’s conception of what it is doing—metatheory of what an approach is and what an object is—should be accompanied by the
further expansion of empirical study into areas currently only dimly illuminated: the
varieties in ifta’, the complexities of non-state shari’a councils, the mechanisms
generating different levels of mahr—among many others. Recursively these two
movements—better grasp of variation and better appreciation of pluralism in approach
and frameworks—ought to enrich and clarify how we think about “law,” “Islam,” and
anthropology.
References
Agrama, Hussein Ali. “Ethics, Tradition, Authority: Toward an Anthropology of the
Fatwa.” American Ethnologist 37 (2010): 2–18.
Antoun, Richard T. Muslim Preacher in the Modern World. Princeton: Princeton
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Asad, Talal. Genealogies of Religion: Disciplines and Reasons of Power in Christianity and
Islam. Baltimore: Johns Hopkins University Press, 1993.
Bourdieu, Pierre. Outline of a Theory of Practice. Cambridge: Cambridge University
Press, 1977.
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Anthropology and Islamic Law
Bowen, John R. “Salat in Indonesia: The Social Meanings of An Islamic Ritual.” Man (N.S.)
24 (1989): 299–318.
Bowen, John R. Islam, Law, and Equality in Indonesia: An Anthropology of Public
Reasoning. Cambridge: Cambridge University Press, 2003.
Bowen, John R. Can Islam Be French? Pluralism and Pragmatism in a Secularist State.
Princeton: Princeton University Press, 2009.
Bowen, John R. On British Islam: Religion, Law and Everyday Practice in Shari’a Councils.
Princeton: Princeton University Press, 2016.
Buskens, Léon. Islamitisch recht en familiebetrekkingen in Marokko [Islamic Law and
Family Relationships in Morocco]. Amsterdam: Bulaaq, 1999.
Clarke, Morgan. “New Kinship, Islam, and the Liberal Tradition: Sexual Morality and
New Reproductive Technology in Lebanon.” Journal of the Royal Anthropological Institute
(N.S.) 14 (2008): 153–169.
Clarke, Morgan. Islam and New Kinship: Reproductive Technology and the Shariah in
Lebanon. New York: Bergahn Books, 2009.
Clarke, Morgan. “The Judges as Tragic Hero: Judicial Ethics in Lebanon’s Shari’a
Courts.” American Ethnologist 39, no. 1 (2012): 106–121.
Dupret, Baudouin. Au nom de quel droit. Paris: Maison des Sciences de l’Homme, 2000.
Eickelman, Dale F. Knowledge and Power in Morocco. Princeton: Princeton University
Press, 1992.
Evans-Pritchard, E. E. The Sanusi of Cyrenaica. Oxford: Clarendon Press, 1949.
Geertz, Clifford. Islam Observed: Religious Development in Morocco and Indonesia.
Chicago: University of Chicago Press, 1968.
Geertz, Clifford. “Local Knowledge: Fact and Law in Comparative Perspective.” In Local
Knowledge. Edited by Clifford Geertz, 167–234. New York: Basic Books, 1983.
Geertz, Clifford, Geertz, Hildred, and Rosen, Lawrence. Meaning and Order in Moroccan
Society: Three Essays in Cultural Analysis. New York: Cambridge University Press, 1979.
Gellner, Ernest. Saints of the Atlas. Chicago: University of Chicago Press, 1969.
Gilsenan, Michael. Recognizing Islam. New York: Pantheon, 1982.
Page 14 of 19
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Oxford Handbooks Online for personal use (for details see Privacy Policy).
Subscriber: Oxford University Press - Main Account; date: 14 March 2016
Anthropology and Islamic Law
Hallaq, Wael B. Sharīʿa: Theory, Practice, Transformations. Cambridge: Cambridge
University Press, 2009.
Hamdy, Sherine. Our Bodies Belong to God: Organ Transplants, Islam, and the Struggle
for Human Dignity in Egypt. Berkeley: University of California Press, 2012.
Hirsch, Susan F. Pronouncing and Persevering: Gender and the Discourses of Disputing
in an African Islamic Court. Chicago: University of Chicago Press, 1998.
Hirschkind, Charles. The Ethical Soundscape: Cassette Sermons and Islamic
Counterpublics. New York: Columbia University Press, 2009.
Hurgronje, C. Snouck. The Acehnese. Translated by A. W. S. O’Sullivan. Leiden: Brill,
1906.
Inhorn, Marcia. “Making Muslim Babies: IVF and Gamete Donation in Sunni versus Shi’a
Islam.” Culture, Medicine and Psychiatry 30, no. 4 (2006): 427–450.
Lemons, Katherine. At the Margins of the Law: Adjudicating Muslim Families in
Contemporary Delhi. Ph.D dissertation, University of California, Berkeley, 2010.
MacIntyre, Alasdair. After Virtue. Notre Dame: University of Notre Dame Press, 1981.
Mahmood, Saba. Politics of Piety: The Islamic Revival and the Feminist Subject.
Princeton: Princeton University Press, 2005.
Masud, Muhammad Khalid, Peters, Rudolph, and Powers, David S., eds. Dispensing
Justice in Islam: Qadis and their Judgments. Leiden: Brill, 2006.
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Society. Berkeley: University of California Press, 1993.
Messick, Brinkley. “Indexing the Self: Intent and Expression in Islamic Legal Acts.”
Islamic Law and Society 8, no. 2 (2001): 151–178.
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Anthropology and Islamic Law
Moors, Annelies. Women, Property and Islam: Palestinian Experiences, 1920–1990.
Cambridge: Cambridge University Press, 1995.
Mundy, Martha. Domestic Government: Kinship, Community and Policy in North Yemen.
London: I.B. Tauris, 1996.
Osanloo, Arzoo. The Politics of Women’s Rights in Iran. Princeton: Princeton University
Press, 2009.
Rosen, Lawrence. The Anthropology of Justice: Law as Culture in Islamic Society.
Cambridge: Cambridge University Press, 1989.
Sachedina, Abdulaziz. Islamic Biomedical Ethics: Principles and Application. Oxford:
Oxford University Press, 2011.
Stiles, Erin E. An Islamic Court in Context: An Ethnographic Study of Judicial Reasoning.
London: Palgrave Macmillan, 2009.
Von Benda-Beckmann, Franz. Property in Social Continuity: Continuity and Change in the
Maintenance of Property Relationships through Time in Minangkabau, West Sumatra.
The Hague: M. Nijhoff, 1979.
Wynn, Lisa. “Marriage Contracts and Women’s Rights in Saudi Arabia: Mahr, Shurût, and
Knowledge Distribution.” In The Islamic Marriage Contract: Case Studies in Islamic
Family Law. Edited by Asifa Quraishi and Frank E. Vogel, 200–214. Cambridge: Harvard
University Press, 2008.
Notes:
(1) Baudouin Dupret, Au nom de quel droit (Paris: Maison des Sciences de l’Homme,
2000); Wael B. Hallaq, Sharî`a: Theory, Practice, Transformations (Cambridge:
Cambridge University Press, 2009), 357–370.
(2) C. Snouck Hurgronje, The Acehnese, trans. A. W. S. O’Sullivan (Leiden: Brill, 1906), 1:
271–288.
(3) For an overview of the anthropology of law, see the annotated reader: Sally Falk
Moore, ed., Law and Anthropology: A Reader (Malden, MA: Blackwell, 2005).
(4) E. E. Evans-Pritchard, The Sanusi of Cyrenaica (Oxford: Clarendon Press, 1949).
Page 16 of 19
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(5) See Michael Gilsenan, Recognizing Islam (New York: Pantheon, 1982); Ernest Gellner,
Saints of the Atlas (Chicago: University of Chicago Press, 1969).
(6) See Richard T. Antoun, Muslim Preacher in the Modern World (Princeton: Princeton
University Press, 1989), 3–44.
(7) Clifford Geertz, “Local Knowledge: Fact and Law in Comparative Perspective,” in
Local Knowledge, ed. Clifford Geertz (New York: Basic Books, 1983), 167–234; Dale F.
Eickelman, Knowledge and Power in Morocco (Princeton: Princeton University Press,
1992); Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society
(Cambridge: Cambridge University Press, 1989).
(8) Evidenced in volumes such as Muhammad Khalid Masud, Rudolph Peters, and David
S. Powers, eds, Dispensing Justice in Islam: Qadis and their Judgments (Leiden: Brill,
2006).
(9) Clifford Geertz, Hildred Geertz, and Lawrence Rosen, Meaning and Order in Moroccan
Society: Three Essays in Cultural Analysis (New York: Cambridge University Press, 1979).
(10) Clifford Geertz, Islam Observed: Religious Development in Morocco and Indonesia
(Chicago: University of Chicago Press, 1968).
(11) Susan F. Hirsch, Pronouncing and Persevering: Gender and the Discourses of
Disputing in an African Islamic Court (Chicago: University of Chicago Press, 1998); Erin
E. Stiles, An Islamic Court in Context: An Ethnographic Study of Judicial Reasoning
(London: Palgrave Macmillan, 2009).
(12) See, e.g., Franz von Benda-Beckmann, Property in Social Continuity: Continuity and
Change in the Maintenance of Property Relationships through Time in Minangkabau,
West Sumatra (The Hague: M. Nijhoff, 1979).
(13) John R. Bowen, Islam, Law, and Equality in Indonesia: An Anthropology of Public
Reasoning (Cambridge: Cambridge University Press, 2003), 89–122.
(14) Ziba Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law (London: I.B.
Tauris, 2001); Arzoo Osanloo, The Politics of Women’s Rights in Iran (Princeton:
Princeton University Press, 2009). See also Ziba Mir-Hosseini, Islam and Gender: The
Religious Debate in Contemporary Iran (Princeton: Princeton University Press, 1999);
Léon Buskens, Islamitisch recht en familiebetrekkingen in Marokko [Islamic Law and
Family Relationships in Morocco] (Amsterdam: Bulaaq, 1999).
Page 17 of 19
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Anthropology and Islamic Law
(15) Rosen, Anthropology of Justice, 51–53; Brinkley Messick, “Indexing the Self: Intent
and Expression in Islamic Legal Acts,” Islamic Law and Society 8, no. 2 (2001): 151–178.
(16) Morgan Clarke, “The Judge as Tragic Hero: Judicial Ethics in Lebanon’s Shari’a
Courts,” American Ethnologist 39, no. 1 (2012): 106–121.
(17) Lisa Wynn, “Marriage Contracts and Women’s Rights in Saudi Arabia: Mahr, Shurût,
and Knowledge Distribution,” in The Islamic Marriage Contract: Case Studies in Islamic
Family Law, ed. Asifa Quraishi and Frank E. Vogel (Cambridge: Harvard University Press,
2008), 200–214. Mir-Hosseini, Marriage on Trial; Annelies Moors, Women, Property and
Islam: Palestinian Experiences, 1920–1990 (Cambridge: Cambridge University Press,
1995).
(18) Katherine Lemons, At the Margins of the Law: Adjudicating Muslim Families in
Contemporary Delhi (Ph.D dissertation, University of California, Berkeley, 2010).
(19) John R. Bowen, On British Islam: Religion, Law and Everyday Practice in Shari’a
Councils (Princeton: Princeton University Press, 2016).
(20) Moors, Women, Property, 48–76; Pierre Bourdieu, Outline of a Theory of Practice
(Cambridge: Cambridge University Press, 1977); See also Martha Mundy, Domestic
Government: Kinship, Community and Policy in North Yemen (London: I.B. Tauris, 1996).
(21) Talal Asad, Genealogies of Religion: Disciplines and Reasons of Power in Christianity
and Islam (Baltimore: Johns Hopkins University Press, 1993); Alasdair MacIntyre, After
Virtue (Notre Dame: University of Notre Dame Press, 1981).
(22) Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject
(Princeton: Princeton University Press, 2005); Charles Hirschkind, The Ethical
Soundscape: Cassette Sermons and Islamic Counterpublics (New York: Columbia
University Press, 2009).
(23) Hussein Ali Agrama, “Ethics, Tradition, Authority: Toward an Anthropology of the
Fatwa,” American Ethnologist 37 (2010): 2–18.
(24) John R. Bowen, Can Islam Be French? Pluralism and Pragmatism in a Secularist State
(Princeton: Princeton University Press, 2009), 83–84.
(25) Clarke, “The Judges as Tragic Hero.”
(26) Abdulaziz Sachedina, Islamic Biomedical Ethics: Principles and Application (Oxford:
Oxford University Press, 2011); Marcia Inhorn, “Making Muslim Babies: IVF and Gamete
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Donation in Sunni versus Shi’a Islam,” Culture, Medicine and Psychiatry 30, no. 4 (2006):
427–450; Morgan Clarke, Islam and New Kinship: Reproductive Technology and the
Shariah in Lebanon (New York: Bergahn Books, 2009).
(27) Morgan Clarke, “New Kinship, Islam, and the Liberal Tradition: Sexual Morality and
New Reproductive Technology in Lebanon,” Journal of the Royal Anthropological Institute
(N.S.) 14 (2008): 153–169.
(28) Sherine Hamdy, Our Bodies Belong to God: Organ Transplants, Islam, and the
Struggle for Human Dignity in Egypt (Berkeley: University of California Press, 2012).
(29) John R. Bowen, “Salat in Indonesia: The Social Meanings of an Islamic Ritual,” Man
(N.S.) 24 (1989): 299–318; Mahmood, Politics of Piety.
(30) An early example is Brinkley Messick, The Calligraphic State. Textual Domination and
History in a Muslim Society (Berkeley: University of California Press, 1993).
John R. Bowen
Department of Anthropology, Washington University in St. Louis
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